Oregon Restaurant and Lodging v. Thomas Perez

Colleagues, even if you don’t like circuit precedent, you must follow it. Afterwards, you call the case en banc. You cannot create your own contrary precedent.1

This case is nothing more than Cumbie II. Because the majority ignores our precedent in Cimbie v. Woody Woo, Inc. (“Cumbie”), 596 F.3d 577 (9th Cir.2010), I begin by describing it in some detail. I will then compare Cumbie to this case.

In Cumbie, a waitress working at an Oregon restaurant sued the restaurant, alleging that its tip-pooling arrangement violated 29 U.S.C. § 203(m). Id. at 579.

[The restaurant] paid its servers a cash wage…